Ostendorf, International Sales Terms, 2. Auflage, C.H. Beck/Hart/Nomos 2014
Von stud. iur. Andreas Seidel, Leuven (Belgien)
This book is concerning the international sales contract and the terms used for it. It seems like a handbook, but it is more than that. It is a useful guide for everyone who is willing to study international sales and wants to underlie it with practical information. Thus, “International Sales Terms” could be also used as study book for students, lawyers and everyone, who is curious to know more about the international sale of goods. Previous knowledge in domestic sales law, the legal order for civil law in general and some idea about the differences of common and civil law is necessary to understand the structure of a contract and the risks resulting from wrong or misleading terms. Additionally a deeper knowledge in contract design might be helpful, but it isn’t mandatory for the understanding.
Ostendorf divides this book in three parts. Part 1 is a general overview, followed by part 2 with a deeper look in to the main parts of the contract: the price, payment terms and delivery incl. trade terms. The last part is about the sales terms in concreto starting with the general provisions (C I), the payment terms (C II), delivery terms (CIII), retention of title (C IV), product defects (C V), limitation of damage claims (C VI), limitation of actions (C VII), export control regulations (C VIII), avoidance by the seller (C IX), confidentiality (C X), force majeure (C XI), formal requirements (C XII), governing law of the contract (C XIII) and litigation incl. arbitration (C XIV). The appendix gives an overview about relevant laws like the CISG (Vienna Sales Convention), parts of the Swiss Code of Obligations and some Swiss statutes.
This leads to the general setting of this book. In Ostendorf’sopinion, a sales contract should be concluded under the application of the CISG (no opt-out as mentioned in art. 6 CISG as opportunity). The external gaps should be closed with domestic national law and not with soft law like the lex mercatoria in general or the i.a. UNIDROIT Principles for International Commercial Contracts (UPICC) (paragraph 339). Besides from the domestic law of the seller’s or buyer’s home countries, many contracts maintain Swiss law as governing law underlying the CISG. For that reason Ostendorf refers to Swiss law and gives the necessary statutes in the appendix. Hence, this book gives most of the useful informations for the design of a contract. Unfortunately other important legislations or soft law (like the Incoterms or the New York Limitation Convention) are not given.
Ostendorf also adopts current developments in the International Sales Law. Therefore the Euro Crisis gets mentioned. As stated in paragraph 171a the crisis results, that the choice of the currency may lead to difficulties in case of the exit of an individual EU member state out of the Eurozone. The author votes for an agreement, that the Seller’s principal place of business is the place of performance for monetary claims and not the Buyer’s place. But he also gives alternative solutions to this problem like an agreement for compensation of the seller in those cases.
Another recent development is the proposal for a Common European Sales Law (CESL). That proposal of 2011 would like to introduce a new, alternative sales law for b2c contracts (b2b just if the business is a SMU), which would exist next to the domestic sales law and has to be opted-in, if the parties agree so. Ostendorf describes in paragraph 114a to 114c shortly the main principles of the CESL and gives an overview about the main provisions and compares it with the CISG.
Of course, the basic controversy concerning the battle of forms is not missing (paragraph 163 ff.). The author introduces in the “last shot rule” and the “knock out doctrine” and comments on both. Unfortunately the “first shot rule” as provided e.g. in Dutch law can be found only in a footnote (footnote 326). Furthermore you have to consult footnote 336, if you want to know the opinion of the CISG Advisory Council to the problem of battle of forms. There is just a reference to the CISG AC Opinion No. 13 without any description. But Ostendorf refers at least to judgments to support his solution of this controversy.
In conclusion “International Sales Terms” by prof. Patrick Ostendorf is a great opportunity to get a closer insight on the drafting of a sales contract. He gives all information you need to understand the basics of the international sales law and provides furthermore some practical information. Therefore it is a good option for the first contact with this field of law. For a deeper view it might be necessary to use additionally a commentary on CISG and other legislations.